Citation Nr: 0921578
Decision Date: 06/09/09 Archive Date: 06/16/09
DOCKET NO. 07-10 620 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether there is new and material evidence to reopen a claim
for service connection for a right foot disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
H. Yoo, Associate Counsel
INTRODUCTION
The Veteran had active service from January 1944 to May 1946.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a decision of November 2005 by the
Department of Veterans Affairs (VA) St. Petersburg, Florida
Regional Office (RO). A hearing was held at the RO in August
2007.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. A claim of service connection for a right foot disability
was previously denied by the Board in September 2004.
2. Evidence received since the September 2004 Board decision
is cumulative of evidence previously considered and does
not raise a reasonable possibility of substantiating the
claim of service connection for right foot disability.
CONCLUSION OF LAW
1. The September 2004 Board decision denying the claim of
service connection for a right foot disability is final.
38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100
(2008).
2. New and material evidence sufficient to reopen the claim
for service connection for a right foot disability has not
been presented. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R.
§ 3.156(a) (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duty to Notify and Assist
VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Upon
receipt of a complete or substantially complete application
for benefits, VA is required to notify the claimant and his
or her representative, if any, of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper
notice from VA must inform the claimant of any information
and evidence not of record (1) that is necessary to
substantiate the claim; (2) that VA will seek to provide; and
(3) that the claimant is expected to provide.
Pursuant to Kent v. Nicholson, 20 Vet. App. 1 (2006), the
veteran must be apprised as to the requirements both as to
the underlying service connection claim and as to the
definitions of new and material evidence. Kent further
requires that the notice inform the veteran as to the basis
for the prior final denial and as to what evidence would be
necessary to substantiate the claim.
In September 2005, the agency of original jurisdiction (AOJ)
provided the notices required by 38 U.S.C.A. § 5103(a) (West
2002), 38 C.F.R. § 3.159(b) (2008), and Kent.
Furthermore, in December 2006, the Veteran was provided with
notices of effective date and disability rating regulation
pursuant to Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006). Although this notice post-dated the initial
adjudication of this claim on appeal, the claim was
subsequently readjudicated, and no prejudice is apparent.
See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the
issuance of fully compliant notification followed by
readjudication of the claim, such as an SOC or SSOC, is
sufficient to cure a timing defect).
The VA has also done everything reasonably possible to assist
the Veteran with respect to his claim for benefits, such as
obtaining in-service records, medical records, and medical
opinions. Although there is no VA examination with a nexus
opinion on file, none is required in this case. The duty to
assist applies to a claim to reopen a finally adjudicated
claim only if new and material evidence is presented or
secured. The United States Court of Appeals for the Federal
Circuit (Federal Circuit) has interpreted this to mean that
VA is not required to provide examination or opinions to a
claimant who attempts to reopen a finally adjudicated claim
until new and material evidence has been submitted.
Paralyzed Veterans of America v. Secretary of Veterans
Affairs, 345 F.3d 1334, 1341 (Fed. Cir. 2003).
New and Material Evidence
Service connection may be granted for a disability resulting
from injury or disease incurred in or aggravated by active
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To
establish service connection for the claimed disorder, there
must be medical evidence of a current disability; medical or,
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and medical
evidence of a nexus between the claimed in-service disease or
injury and the current disability. 38 C.F.R § 3.303 (2008);
see also Hickson v. West, 12 Vet. App. 247, 253 (1999).
Service connection may also be granted for chronic disorders,
such as arthritis, when manifested to a compensable degree
within one year of separation from service. 38 U.S.C.A. §§
1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time. If a condition noted
during service is not shown to be chronic, then generally, a
showing of continuity of symptoms after service is required
for service connection. See 38 C.F.R. § 3.303(b). Service
connection may also be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. See 38 C.F.R. § 3.303(d).
A September 2004 Board decision denying service connection
for right foot disability is final based on the evidence then
of record. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. §§
20.1100 (2008). However, a claim will be reopened if new and
material evidence is submitted. 38 U.S.C.A. §5108; 38 C.F.R.
§ 3.156(a). New evidence means existing evidence not
previously submitted to agency decision-makers. Material
evidence means existing evidence that, by itself or when
considered with previous evidence of record, relates to an
unestablished fact necessary to substantiate the claim. New
and material evidence and be neither cumulative nor redundant
of the evidence of record at the time of the last prior final
denial of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a) (2008).
The September 2004 Board decision denied the claim of service
connection for a right foot disability because the evidence
did not show that right foot injury was incurred in service
or that a right foot disability was causally related to
service.
Turning to the evidence received since that September 2004
decision, the Board notes that the Veteran was seen on an
outpatient basis in May 2005, where a sensory examination of
the right foot was determined to be normal. In November 2006
he was assessed with right foot pain and a positive history
of degenerative joint disease of the foot and onychomycosis
was noted.
The Veteran also received treatment at a private treatment
facility in November and December 2006 where he stated he had
right foot pain every night that burned and tingled. He
stated he took Tylenol for the pain, described as a four on a
scale of one to ten. The Veteran was instructed to continue
treating his pain with Tylenol, and with heat. See JSA
Healthcare, dated November and December 2006. The Veteran's
military service was not mentioned in these records.
In July 2007, the Veteran obtained a second opinion from a
private podiatrist. The private podiatrist found the
Veteran's right foot to have "muscle strength +5/5
bilateral. [Range of Motion] of the ankle and subtalar joint
within normal limits. No pain or crepitus noted upon [range
of motion]. There is deviation away from each other on digit
2-3 of right foot. No pain on palpation of the metatarsal
heads or upon plantarflexion at the [metatarsophalangeal]
joints of the affected toes." Upon x-ray, the private
podiatrist found "there [were] no old fractures on the
metatarsals or phalanges noted." The examiner diagnosed the
Veteran with degenerative joint disease bilaterally.
Furthermore, he noted that he "did not see any trauma to
[the Veteran's forefoot on the right foot in the films or
exams." See Dr. J. Rivera private examination record, dated
July 2007.
The Veteran testified during the August 2007 RO hearing
stated that his right foot disability resulted from his
military service in the US Navy. Specifically, he testified
that he injured his foot while aboard a ship in 1944 while
"climbing the ladder to [their] gun mount during a severe
storm... the ship listed and [he] twisted [his] right foot on a
ladder rung, which injured the ligament of [his] right foot.
Since [there] was no medical officer on board this merchant
ship, [his] injury was not treated." See Veteran's
Statement in Support of Claim, dated August 2005. In
addition, the Veteran testified at an August 2007 RO hearing
regarding his injuries during service. See RO hearing
transcript, dated August 2007.
The Veteran also submitted various lay statements attesting
to his right foot disability. The Veteran's wife stated she
"[had] been married to [the Veteran] for [fifty-eight] years
and he has always complained about his foot." See letter
from B. S., dated January 2007. In addition, C. J. C. stated
he had noticed the Veteran limping on several occasion and
that the Veteran attributed his gait to an injury incurred
during his service. See letter from C. J. C., dated January
2007.
Although the evidence discussed above is "new," in that the
records were not previously seen, it is not material. The
evidence previously considered already established that the
Veteran had a right foot disorder, and this "new" evidence
fails to cure the defects presented by the previous decision,
namely the lack of evidence that the right foot disability
was incurred in service or causally related to service.
The Board is sympathetic to the Veteran's claim and
appreciates his honorable, military service. However, the
Veteran's testimony and the letters submitted on his behalf
is not competent to establish that he incurred his disability
during his active service. While lay testimony is competent
to establish the occurrence of an injury, it is not competent
to provide a medical diagnosis. See Chavarria v. Brown, 5
Vet. App. 468 (1993) (an appellant's own recitations of his
medical history does not constitute new and material evidence
sufficient to reopen his claim when this account has already
been rejected by the VA).
Because the evidence received since the September 2004 Board
decision does not medically suggest that the Veteran's right
foot disability was incurred in service, it does not raise a
reasonable possibility of substantiating the claims. And as
such, the requests to reopen are denied.
ORDER
New and material evidence not having been submitted, the
Veteran's application to reopen his claim of entitlement to
service connection for a right foot disability remains
denied.
____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs